from the insanity dept

As you hopefully know by now, we've been talking a lot about the Trans-Pacific Parntership agreement (TPP) that's being negotiated. That's because following the SOPA/PIPA debate, there's been renewed interest in ACTA -- which is great -- but with ACTA very far along in the process, we think it's important that people are also paying attention to the next attempt by a few legacy industries to sneak bad laws onto the books via international agreements negotiated in absolute secrecy. It's been almost a year since the first version of TPP leaked, despite attempts by negotiators (especially the USTR) to keep it entirely secret. We noted many problems with it at the time, but with the renewed interest in TPP, people are once again dissecting the leaked document. Cory Doctorow, over at Boingboing recently highlighted how TPP will seek to regulate buffer copies:

One jaw-dropping leak is that that the treaty contemplates requiring licenses for ephemeral copies made in a computer's buffer. That means that the buffers in your machine could need a separate, negotiated license for every playback of copyrighted works, and buffer designs that the entertainment industry doesn't like -- core technical architectures -- would become legally fraught because they'd require millions of license negotiations or they'd put users in danger of lawsuits.

This isn't the first time that buffer licensing was proposed. Way back in 1995, the Lehman white paper, proposed by Clinton's copyright czar to Al Gore's National Information Infrastructure committee, made the same demand. It was roundly rejected then, because the process was transparent and the people who would be adversely affected by it (that is, everyone) could see and object to it.

This is about legislating chip designs and software architecture, and the only people allowed in the room are entertainment execs. The future of silicon itself hangs in the balance.

This is great background info, and there's a little more history to go into here. First, what does the leaked copy of TPP actually say? It's right here in Article 4, Section 1:

Each Party shall provide that authors, performers, and producers of phonograms have the
right to authorize or prohibit all reproductions of their works, performances, and phonograms,
in any manner or form, permanent or temporary (including temporary storage in electronic
form).

Note the emphasis, added by me. This would require the blocking of any buffer copies without an extra license. This is actually a really big deal for a variety of reasons, and could create a massive chill on important innovations. What the negotiators here are trying to do is to kill off any cloud streaming service (or require it to pay a lot extra). In the US, a few years ago, the 2nd Circuit ruled that Cablevision's remote DVR was legal. Basically, Cablevision set up a bunch of servers that could act like a standard DVR, but rather than the box being at home, it was in a central data center. The TV networks freaked out about this and insisted that it must be illegal. But, of course, the only real difference between this and a TiVo was how long the cord between the DVR and the TV was. It seems ridiculous to think that the copyright could be impacted by the length of the cable.

The key, then, to the TV guys' argument against Cablevision was to show that Cablevision itself was involved in copying works without a license. Since it was the user pushing the button to "record" something that argument wasn't very strong -- so they picked up on a specific piece: that in the process of making this work, Cablevision had to, for an exceptionally brief period of time, buffer the TV streams that it was playing. The crux of the TV networks' argument against Cablevision was that it was that buffer that violated copyright law. The court laughed this off, and the Supreme Court refused to hear the appeal, leaving the ruling standing. The TV guys hate, hate, hate this ruling. What they want is for Cablevision to pay them extra to offer this service to its customers.

Courts in other countries have given very mixed rulings on this. The US and Singapore seem fine with remote DVRs, while Korea and Japan have found them to be infringing. As I was writing this story up, we have a preliminary ruling in Australia that such remote DVRs are legal.

The goal of TPP? To kill all of this and make the ISPs and cable guys pay extra to innovate and offer such services. TPP, as written, would require countries to allow copyright holders to "prohibit" the use of buffer copies. That would effectively overrule the Cablevision ruling here in the US and force anyone who wanted to offer such a remote DVR to negotiate for a license.

That's what this is about. It's got nothing to do with stopping infringement at all. It has everything to do with stopping innovation that Hollywood doesn't like -- or rather innovation where Hollywood can't insert a tollbooth. Of course, the collateral damage here would be massive. Beyond making services like remote DVRs illegal overnight, it would raise significant questions about plenty of other technologies. Think just how often buffer copies need to be made when you're dealing with digital files. Imagine if you need a separate license for each of those. For anyone who knows anything about technology, such a proposal is pure insanity. It's an attempt to massively expand copyright law in the age of computers, for something that has nothing to do with the intended purpose, nor components, of existing copyright law. It seeks to put a legal liability for a transitional state of content for no reason other than that Hollywood wants to get paid any and every time a piece of content is touched.

If the USTR (or any of the negotiators) actually understood anything (anything at all) about computers and how technology worked, such a request would be a non-starter. Instead, it's front and center in the copyright section of the TPP.

from the at-least-for-a-little-while dept

Well, here's a bit of good news this Monday. It appears that the Supreme Court has listened to the Solicitor General, and refused to hear the appeal concerning Cablevision's remote DVR offering. This is good for a variety of reasons. We've discussed how this is an important case on a variety of levels, but also a tricky one. The appeals court ruling got the right results (saying a remote DVR was legal, and that buffer copies were not infringing) but really had to twist itself into a knot to explain why -- demonstrating just how ridiculous copyright law is these days.

The basic facts are quite straightforward. A DVR, such as a TiVo that sits next to your TV is perfectly legal. Time shifting content has been shown as legal, and not infringing by the courts in the past. That's great. However, Cablevision effectively built a remote DVR. It sat in Cablevision's datacenter, rather than next to your TV. Otherwise, it did exactly the same thing. From a user's perspective, it was almost identical. You could save shows and forward and rewind shows. Functionally identical. Hollywood insisted that by moving where the box lived, it somehow made it illegal, coming up with absolutely ridiculous arguments about how it's like Cablevision setting up a gun for someone to shoot by pushing a button -- ignoring that in the equivalent reality, no one's getting shot, they're just doing something that's already been found to be perfectly legal (time shifting).

That said, this question is hardly over. While the appeals court decision came to the obviously correct conclusion, the fact that it did so in such a roundabout, and at times tortured, way, actually suggests that we'll be seeing this issue come up elsewhere in other courts in some manner. Eventually there's likely to be a split of some sort, and perhaps then the Supreme Court will weigh in. Still, given how screwed up the Supreme Court seems to get when it comes to copyright, delaying that seems like a good thing. It's quite strange that the Supreme Court seems to do such a good job with patent law, but gets totally twisted around when it comes to copyright law. Still, in the meantime, Cablevision can move forward with its remote DVR, and at the least, folks in the Second Circuit can rest assured that buffered copies are not infringing.